The term “black swan” refers to an event that has enormous impact and is rare and difficult to predict. The prime example used by Taleb is 9/11 — an event of outsize importance that typical risk analyses would have been unable to predict or identify. There’s a fair amount of focus now on black swans, how to predict and control for them.

Sometimes, though, we are looking for black swans when we should be looking for white ones — events that have enormous impact, but that are neither rare nor particularly difficult to predict. An event like the Newtown murders may feel like a black swan — who could have predicted? But the preconditions for the event make it more of a white swan than a black one. For one, mass gun violence is relatively common in America; about 80 people die every day from gun violence. Although it is tragic that 27 murders and 1 suicide occurred in one place, and that many of the dead are children, it is not extraordinary in a world where gun violence occurs with regularity.

As long as it is easier for a mentally disturbed young man to get a handgun than mental health treatment, President Obama’s exhortations that we will do more to protect children strike me as hollow. Gun control laws have been eviscerated by the Supreme Court, and the gun lobby’s loud voice in the public conversation make movement on that front almost unimaginable. Mental health treatment is only slightly more likely, and my guess is that such laws would be targeted at committing people to quasi-incarceration rather than actually providing therapeutic treatment.

We cannot predict mass murder with precision, of course, but we can say with some probability that murders with guns will occur regularly through the day, week, month, year, etc. Without concerted efforts to either reduce the availability of firearms or increase the availability and reduce the stigma of mental health services, mass murder will continue to be a white swan rather than a black one.

(On the gun control topic for a second, I get all the 2nd Amendment stuff — we need to have firearms in case we need to overthrow the government. Sure. But a state monopoly on violence goes a long way to reducing violence among the populace. If this is an explicit trade-off being made, then fine, but I don’t think we have properly costed in the price of lost lives and mental/physical trauma.)

Missouri U.S. Senate candidate Rep. Todd Akin’s awful suggestion that women rarely get pregnant from “legitimate rape” is awful for many reasons — a mind-blowing lack of knowledge of basic human biology, the suggestion that many rape victims who ask for abortions must be lying, etc.

In the meantime, Todd Akin will still probably win in Missouri, regardless of his ignorant and offensive comment. The Missouri Republican Party’s official platform supports overturning Roe v. Wade, forced anti-abortion counseling, preventing public money from going to abortions, preventing public employees from referring abortions, etc. Much as Republicans may pretend, Akin’s comments aren’t shocking or surprising at all — they are part and parcel of Republican anti-abortion extremism.

Like the saying goes, “It’s hard to make predictions, especially about the future.”

I am in the minority view here, but I think the Court still upholds the whole law in a quite narrow opinion in a 6-3 decision authored by Chief Justice Roberts. Maybe I am naive in my belief that laws matter, but I just don’t believe that the Court is willing to limit the Commerce Clause on some made-up wacky distinction like “action” vs. “inaction.”

OK, it was a bad joke about how women should just keep their legs closed if they don’t want to get pregnant. And it’s easy for the Santorum campaign to shrug it off as a joke, just as it’s easy for us to laugh about it.

That is to say, the joke about “squeezing an aspiring between your knees” as birth control is not “off-color” or “crossing the line”: It’s accurately depicting the Santorum campaign’s position on birth control and consensual male-female sex.

Santorum may say now that he thinks birth control should be available (one wonders why his argument doesn’t apply to abortion, but we’ll skip that), but his stance on birth control affordability/availability is clear: he believes birth control pills are bad, and that people should not use them and that abstinence is the only method.

“Aspirin between the knees” is the reality of the Santorum campaign, not just a one-off line by a surrogate.

Obviously, this is not about children’s rights. The children’s rights are being violated by their parents, who believe their right to use their children as symbols to prove their piety trumps their children’s right to health.

But to whom to these children’s rights inhere? That is to say, are children to be protected from their parents by the state? Or are they to be protected by their parents from the state?

Consider some of the core examples of what we consider children’s rights. Child labor, for instance, is not permissible, but we permit it in many family businesses. In some sense, the state wants to protect children from their parents (who would put them to work or accept exploitation by others). Yet, the state doesn’t want to impose unnecessary burdens on parenting (or on children themselves, who might want to help their family out in the business).

Or consider the famous case of Tinker v. Des Moines School District, where children were found to have free speech rights in school after coming to school wearing black armbands to protest the Vietnam War. The Tinker kids’ parents both supported their decision and were noted area peace activists. Would the children have been protesting at all had their parents not been part of the peace movement? Or, more importantly, would the children’s parents have brought suit for them (as next friends, as necessary in court for minors) if they disagreed with them?

If we envision children’s rights as the state protecting children from their parents (or other adults through increased penalties for crimes against children, for example), then Marcotte is correct and children need vaccinations to protect them from their moronic parents. (And they are morons, for the record.) But if we envision children’s rights as parents protecting their children from an encroaching state (like Tinker!), then the vaccine-fearing parents, wrong though they may be, are asserting a vision of children’s rights that is not altogether insane.

As Linus alluded to, I do indeed have a prediction about the Affordable Care Act cases, although it is not altogether interesting: I predict the Court will uphold the entire law, as well as severability generally, and that the Court will reaffirm the reach of the federal government’s tax-and-spend power.

That said, I think the real story will be how the opinions are structured. If Kennedy goes for upholding the law, it seems plausible that Roberts would glom on specifically to assign the opinion to himself to write a more conservative opinion in line with Judge Kavanaugh’s D.C. Circuit dissent ruling the whole mandate nonjusticiable on procedural grounds. And if Roberts is on board, Scalia may even hop on in hopes of writing a concurring opinion that has some precedential effect.

The long and short of it, however, is that the Court’s ruling here will probably have only marginal effect on the law itself. If the Court were to rule all or part of the ACA unconstitutional, it would be in a world of political attack. Calls for Thomas’s impeachment would grow; Obama would run against the Supreme Court as a countermajoritarian institution (combining Citizens United, Parents Involved, and the ACA cases together). After seeing the discomfort of the Justices at being targeted during the State of the Union, I doubt they want to hurt their institutional reputation any more. Better to find a way to wriggle out of the ruling than to be the next Court to be packed.

Even if the Court were to strike down the individual mandate, all that would do to the ACA is make it cost a lot more. For all our hand-wringing about debt, we don’t care so much about, say, Medicare Part D or other large spending packages. I doubt much would change with the law other than a few tweaks. Plus, if insurance rates really do go down thanks to local exchanges, more people, even healthy young people who usually don’t buy insurance, would be willing to partake without a mandate.

Caveat to all this is that court-watching is an inherently unpredictable sport: Famously, the last major Commerce Clause case in which a federal law was found unconstitutional was U.S. v. Lopez (the Gun-Free School Zone case) which everyone thought would be a slam-dunk for the government. 8-1 at least, with only Thomas in the dissent. And then, at oral argument, it became clear that the conservative members of the Court were looking for a limit to Commerce Clause power and believed they had their case. 5 votes later, down came the first Commerce Clause case since the New Deal to strike down a federal law.

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To the surprise of no one, the Supreme Court will take on the health care law. This became a near certainty once multiple federal appeals courts issued differing opinions. They’re setting aside over 5 hours for arguments, which some reports have said is the most time ever set aside for a case. The ruling is expected in June 2012, leaving plenty of time to have huge ramifications for the presidential election five months later. Most legal analysts I’ve come across have said that if precedence is any guide, the law should have no problem being upheld. But because one appeals court has come to the opposite conclusion already, and because I am a huge pessimist, and because Thomas and Scalia and Alito and Roberts are toolbags – and Kennedy is anyone’s guess – I’m guessing the law will go down. Even if it’s just the mandate that goes down, that effectively dismantles the entire law, since the mandate is the only reason the ban on dropping people for preexisting conditions is even possible. I wonder what my more law-ful coblogger thinks.